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IN THE HIGH COURT OF RAJASTHAN
MOHAMMAD RAFIQ, GOVERDHAN BARDHAR, JJ.
Smt. Palak Jain – Appellant
Versus
Naveen Rawat – Respondent
Civil Miscellaneous Appeal No. 5935 of 2018
Decided On : 04-01-2019
Advocate Appeared:
For the Appellant : Amit Jindal.
For the Respondent: Ms. Vandana Sharma.
Headnote:
Hindu Marriage Act – Section 13B – Appellant-wife filed application seeking divorce from respondent-husband with mutual consent, which posted to be listed before court after six months, Both parties moved application for waiver of six months cooling period on ground that there is no possibility for parties to live together and they have living separately and 12 cases are pending between them in different courts, Ignoring those facts, Family Court rejected application on ground that parties moved application just after two days of its filing –Held, Parties pray after waiving cooling off period of six months, court may pass decree of divorce on mutual consent keeping in view fact their marriage reached stage of irretrievable broken down, and application pending before Family Court be also allowed, submission, learned counsel relied on judgments of Supreme Court cooling off period mentioned in Section 13-B(2) is not mandatory but directory, it will be open to court to exercise its discretion in facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation – Appeal is allowed. (Para 4, 5)
Facts of the case: Appellant-wife filed application seeking divorce from respondent-husband with mutual consent, which posted to be listed before court after six months, Both parties moved application for waiver of six months cooling period on ground that there is no possibility for parties to live together and they have living separately and 12 cases are pending between them in different courts, Ignoring those facts, Family Court rejected application on ground that parties moved application just after two days of its filing.
Findings of the court: Parties pray after waiving cooling off period of six months, court may pass decree of divorce on mutual consent keeping in view fact their marriage reached stage of irretrievable broken down, and application pending before Family Court be also allowed, submission, learned counsel relied on judgments of Supreme Court cooling off period mentioned in Section 13-B(2) is not mandatory but directory, it will be open to court to exercise its discretion in facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.
Result: Appeal is allowed.
MOHAMMAD RAFIQ, J.
1. The appeal being D.B. Civil Miscellaneous Appeal No. 5935/2018 on behalf of the appellant-wife Smt. Palak Jain has been filed under Section 19 of the Family Court Act, 1984, praying for quashment and setting aside the order dated 28.11.2018 passed by the Judge, Family Court No. 1, Jaipur, whereby the application dated 14.11.2018 filed by both the parties for cooling off the period of six months, was dismissed.
2. It is contended that the appellant-wife filed an application under section 13B of the Hindu Marriage Act on 12.11.2018 seeking divorce from the respondent-husband with mutual consent, which was posted to be listed before the court on 13.05.2019, i.e. after six months. Both the parties moved an application on 14.11.2018 for waiver of six months cooling period on the ground that there is no possibility for the parties to live together and they have been living separately from 18.10.2014 and 12 cases are pending between them in different courts. Ignoring those facts, the Family Court rejected the application on the ground that the parties have moved the application just after two days of its filing.
3. Learned counsel for both the parties submitted that a compromise has been arrived at between the parties before the Alternative Dispute Redressal Forum, Jaipur Metropolitan, Jaipur, on 29.10.2018 wherein it has been agreed to get all the 12 cases pending between them decided by way of compromise. As per the compromise dated 29.10.2018, the respondent-husband has made payment of Rs. 13,00,000/- to the appellant-wife in different modes, and a sum of Rs. 2,00,000/- has been paid by the respondent-husband to minor child Lav Rawat by way of demand draft.
4. Learned counsel for both the parties pray that after waiving the cooling off period of six months, this court may pass a decree of divorce on mutual consent keeping in view the fact that their marriage has reached the stage of irretrievable broken down, and the application under section 13(B) of the Hindu Marriage Act pending before the Family Court be also allowed. In support of this submission, learned counsel relied on the judgments of the Supreme Court in Veena vs. State Govt. of NCT Delhi and Another, (2011) 14 SCC 614, Devinder Singh Narula vs. Meenakshi Nangia, (2012) 8 SCC 580 and Amardeep Singh vs. Harveen Kaur, (2017) 8 SCC 746. In Amardeep Singh, supra, the Supreme Court laid down that since the cooling off period mentioned in Section 13-B(2) is not mandatory but directory, it will be open to the court to exercise its discretion in the facts and circumstances of each case where there is no possibility of parties resuming cohabitation and there are chances of alternative rehabilitation.
5. In view of the compromise arrived at between the parties, we are persuaded to allow the appeal. The appeal is accordingly allowed. The impugned order dated 28.11.2018 of the Family Court No. 1, Jaipur is set side. The cooling off period of six months is waived. The marriage between appellant-wife and respondent-husband is therefore dissolved by mutual consent with immediate effect in terms of the compromise entered into between the parties. The Application No. 164/2018 filed by both the parties under section 13B of the Hindu Marriage Act, 1955 and pending before the Family Court No. 1, Jaipur, is accordingly allowed. Decree of divorce be prepared accordingly.
